Report Media Diversity

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H/APMD (2003) 1

Media diversity

in Europe

report prepared by the AP-MD

(Advisory Panel to the CDMM on media concentrations, pluralism

and diversity questions)

Media Division

Directorate General of Human Rights

Strasbourg, December 2002


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- 3 -

Report on

Media diversity

in Europe

by

Peter A. Bruck , Institute for Information Economy and New Media, Salzburg

Dieter Dörr, Professor for Public Law, Johannes Gutenberg!ni"ersit#t, Mainz

Jacques Favre, $om%etition $ommission, &erne

Sigve Gramstad, 'irector General, Norwegian Media (wnershi% )uthority,(slo

Rosaria Monaco, *ead of Legal )d"ice 'e%artment, +)I, +ome

Zrinjka Peruko !u"ek , *ead of 'e%artment for $ulture and $ommunication,IM(, agreb

)ssisted by the Secretariat of the Media 'i"ision of the $ouncil of Euro%e

Media Division

Directorate General of Human Rights

Strasbourg, December 2002


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-he )d"isory Panel on media di"ersity . )PM' . is a $ouncil of Euro%e wor/ing grou%

which was established after the 0th Euro%ean Ministerial $onference on mass media %olicy

1$racow, 2320 June 45556 with a "iew to monitoring de"elo%ments in the area of media

di"ersity and %luralism7 -his re%ort has been drawn u% by the )PM' and %resented to the

$ouncil of Euro%e Steering $ommittee on the Mass Media 1$'MM6, which has a%%ro"ed it7

-his being said, the $'MM is not bound by the conclusions and information %resented in the

re%ort, which is the full res%onsibility of its authors7

Media Division

Directorate Genera o! Human "ig#ts

$ounci o! %uro&e

'*0*+ Strasbourg $ede

#tt&-//...#umanrig#tscoeint/media/

Printed at t#e $ounci o! %uro&e

http://www.humanrights.coe.int/media/http://www.humanrights.coe.int/media/


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#AB$% &F '&(#%(#S

Page

Part 58 Introduction777777777777777777777777777777777777777777777777777777777777777777777777777777777777777777777777777777777777777773

Part )8 9reedom of e:%ression and information as a basis of media di"ersity 77777777777777777777773

I7 )rticle 25 of the E$*+ +eading the $on"ention in a new way8 from

freedom of e:%ression to freedom of information and beyond7777777777777777777777777777777777

II7 'i"ersity of culture as an as%ect of %luralism7777777777777777777777777777777777777777777777777777777777777

III7 'i"ersity of content and sources as an as%ect of %luralism7777777777777777777777777777777777777777

I;7 *ow to regulate the media mar/et . by s%ecial regulation or through

com%etition regulation777777777777777777777777777777777777777777777777777777777777777777777777777777777777777777777777

Part &8 Media ownershi% regulations8 ensuring di"ersity in the %ri"ate sector77777777777777777777722

I7 Introduction to media ownershi% rules777777777777777777777777777777777777777777777777777777777777777777777

II7 (wnershi% rules in se"en Euro%ean countries8 /ey features for com%etent

authorities to safeguard %luralism77777777777777777777777777777777777777777777777777777777777777777777777777777

III7 +ecent trends in media ownershi% %ro"isions8 future regulatory %ro%osals for

anticoncentration measures7777777777777777777777777777777777777777777777777777777777777777777777777777777777777

I;7 9oreign ownershi% of media in countries of central and eastern Euro%e777777777777777777

Part $8 Public ser"ice broadcasting8 an essential element for media di"ersity7777777777777777777772<

Part '8 New technologies and di"ersity issues7777777777777777777777777777777777777777777777777777777777777777777772=

I7 $hallenges and o%%ortunities of con"ergent media77777777777777777777777777777777777777777777777777

II7 'igital terrestrial tele"ision 1'--677777777777777777777777777777777777777777777777777777777777777777777777777

Part E8 -rade liberalisation and audio"isual ser"ices7777777777777777777777777777777777777777777777777777777777744

Part 98 $onclusions and recommendations7777777777777777777777777777777777777777777777777777777777777777777777777774>

)PPEN'I?777777777777777777777777777777777777777777777777777777777777777777777777777777777777777777777777777777777777777777777777777777740

I7 Structural e"olution of the media sector7777777777777777777777777777777777777777777777777777777777777777777II7 New trends towards crossmedia ownershi%8 the emergence of the multimedia

multinational7777777777777777777777777777777777777777777777777777777777777777777777777777777777777777777777777777777777777

III7 $ross country mergers8 the lowering and erosion of national media mar/et

boundaries77777777777777777777777777777777777777777777777777777777777777777777777777777777777777777777777777777777777777777

I;7 -he e:am%le of telecommunications777777777777777777777777777777777777777777777777777777777777777777777777

I;7 -he ;odafone case7777777777777777777777777777777777777777777777777777777777777777777777777777777777777777777777777777


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%)ecutive Summar*

)rticle 25 of the Euro%ean $on"ention on *uman +ights is the basic framewor/ for

media %luralism on the Euro%ean scale7 !nder its effect, States are under a @duty to %rotectA

and, when necessary, to ta/e %ositi"e measures to ensure di"ersity of o%inion in the media7-he Euro%ean $ourt of *uman +ights has stated that without %lurality of "oices and o%inions

in the media, the media cannot fulfil their contributory role in democracy7

-hus, Euro%ean States are under the obligation of safeguarding and %romoting

%luralism in the media7

-his re%ort e:amines factors and %oints to measures which are s%ecific and sensiti"e to

"arying conte:ts7

Gi"en the significant differences in culture, in the size and characteristics of media

mar/ets, and in legal and administrati"e traditions within Euro%e, no common or singleregulatory model will be suitable for all Euro%ean countries7

Gi"en this, it is nonetheless clear that a com%etition law a%%roach alone is not

sufficient7 Sectors%ecific media ownershi% measures and regulations are necessary and will

contribute %ositi"ely to media %luralism obBecti"es7

'ifferent indicators and thresholds are used in Euro%ean countries to monitor and

control media concentrations7 -his re%ort recalls that the audience share a%%roach is one of

the %ossible models, which %resents the ad"antage of reflecting the real influence of a

broadcaster in a gi"en mar/et and at the same time is neutral on the number of licences which

the broadcaster can hold and allows its international de"elo%ment7 Chiche"er the indicator

em%loyed, %ermissible thresholds "ary at around 2D of the audience, 2D of re"enues or 2D of

the networ/ ca%acity, im%lying a general Euro%ean understanding that controlling one third of

the mar/et is tolerable, but that going beyond that le"el could infringe u%on freedom of

e:%ression and information7

Media ownershi% rules need to be com%lemented by other measures which fa"our

media %luralism8 %ublic ser"ice broadcasting has an essential role to %lay in this res%ect and

ensuring di"ersity at the le"el of sources is also im%ortant7

-he de"elo%ment of digital technology %oses new challenges to %luralism whichresults from, among others, the use of %ro%rietary systems by o%erators7 -he trend towards

media concentration is strengthened with digital con"ergence7

Liberalisation and globalisation of mar/ets increase the %ressures for concentration on

the national scale7

States need to strengthen national regulators and authorities res%onsible for ensuring

and %rotecting media %luralism7 $onstant monitoring and %roacti"e %olicyma/ing by States

are reFuired7


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Media diversity in Europe Page +

PART 0: INTRODUCTION

1. -he im%ortant role which the media %lays in sha%ing %ublic o%inion should be

recognised and gi"en %articular attention when addressing Fuestions of

economicDmar/et concentration in this sector7

2. Media enter%rises, as economic units, are subBect to mar/et rules, and conseFuently,

com%etition legislation can a%%ly to this sector too7 *owe"er, gi"en the heterogenous

nature of the media mar/et, com%etition authorities often ha"e difficulties in

determining the @rele"ant mar/etA, and furthermore it is generally acce%ted that

com%etition law alone is not sufficient to ensure media %luralism7

3. Guaranteeing media di"ersity, in %articular in the current trend of globalisation,

reFuires an a%%roach which se%arates media content Fuestions from %urely economic

ones7

4. -his re%ort deals with different a"enues to %romote and ensure di"ersity in the media,

focusing in %articular on the broadcasting sector7 It %resents, for instance, e:am%les of

media ownershi% rules, and stresses the im%ortance of ha"ing strong %ublic ser"ice

broadcasting and intero%erable technical standards7

PART A: FREEDOM OF EXPRESSION AND INFORMATION

AS A BASIS OF MEDIA DIVERSITY

+. AR#+'$% ,- &F #% %'R / R %AD+(G #% '&(0%(#+&( +( A (%1 1A23 FR&M FR%%D&M &F %4PR%SS+&( #& FR%%D&M &F +(F&RMA#+&( A(D B%2&(D

5. )rticle 25 of the Euro%ean $on"ention on *uman +ights1 is of crucial im%ortance on

the Fuestion of media di"ersity7 In effect, it ma/es res%ect for the human right to

freedom of o%inion binding on all member States of the $ouncil of Euro%e7 -he

contents of this reFuirement ha"e been narrowed down in the numerous Budgements of

the Euro%ean $ourt of *uman +ights7 9urthermore, the )rticle concerns legally

enforceable, indi"idual rights, and since the entry into force of Protocol No7 22 to the

$on"ention any citizen of a signatory State is entitled, after e:hausting domesticremedies, to lodge a com%laint alleging a "iolation of these human rights with the

$ourt7 Lastly, within the Euro%ean !nion, the rights guaranteed by the $on"ention,

and therefore also by )rticle 25, Fualify as general %rinci%les of $ommunity law, as is

now e:%ressly ac/nowledged in )rticle 074 of the -reaty on the Euro%ean !nion

1MaastrichtD)msterdam67

1 )rticle 25 of the Euro%ean $on"ention on *uman +ights reads8 @27 E"eryone has the right to freedom of e:%ression7 -his

right shall include freedom to hold o%inions and to recei"e and im%art information and ideas without interference by %ublic

authority and regardless of frontiers7 -his article shall not %re"ent States from reFuiring the licensing of broadcasting,tele"ision or cinema enter%rises7 47 -he e:ercise of these freedoms, since it carries duties and res%onsibilities, may be subBect

to such formalities, conditions, restrictions or %enalties as are %rescribed by law and necessary in a democratic society, in the

interests of national security, territorial integrity or %ublic safety, for the %re"ention of disorder or crime, for the %rotection of health or morals, for the %rotection of the re%utation or rights of others, for %re"enting the disclosure of information recei"ed

in confidence, or for maintaining the authority and im%artiality of the Budiciary7A


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Page Council of Europe

6. )rticle 2572 first and foremost guarantees the indi"idual right to freedom of

e:%ression7 )s indicated in the second sentence of the same %aragra%h, this includes

freedom of information7 *owe"er, no e:%ress mention is made to freedom of the

media or to media %lurality and di"ersity7 9reedom of broadcasting and of the %ress as

%art of acti"e and %assi"e freedom of o%inion is arri"ed at by an inter%retation of thesecond sentence of )rticle 25727 -he Euro%ean $ourt of *uman +ights first construed

)rticle 2572 in terms of indi"idual rights and regarded freedom of broadcasting as

deri"ing from freedom of e:%ression and as a form of freedom of enter%rise, that is,

freedom to %ursue a %ri"ate broadcasting acti"ity27

7. )t first sight, this %ers%ecti"e differs clearly from the functional a%%roach to media

freedoms ta/en, for e:am%le, by the $onstitutional $ourts in Germany and Italy7

Generally s%ea/ing, in Euro%ean countries, freedom of broadcasting is %ercei"ed as a

%ur%oseser"ing freedom or a functional basic right37 -his a%%roach is based on the

assum%tion that freedom of broadcasting, li/e other media freedoms, is aimed at

ensuring freedom of information and must therefore afford the %ublic access to free,com%rehensi"e information, in the interests of democracy7 9reedom of the media

accordingly im%lies that the %ublic has access to a free media system, which %ro"ides

o"erall balanced, full and "aried information7 -he underlying idea is that a free

system of this /ind is an essential %rereFuisite for a functioning democracy7 It follows

that this conce%t of freedom of the media also guarantees media di"ersity7 -he State is

moreo"er obliged to ta/e %ositi"e regulatory measures ensuring the widest %ossible

range of balanced %ri"ate media, if for %ractical reasons such "ariety is not in fact

achie"ed47

8. -he more recent Budgments of the Euro%ean $ourt of *uman +ights clearly show that

Strasbourg still regards freedom of the media as %art of the indi"idual right to freedom

of e:%ression enshrined in )rticle 2572 of the $on"ention7 -he conce%t of the

%ur%oseser"ing function of the media as a means of %romoting freedom of

information has nonetheless been ta/en u% and a%%lied elsewhere by the $ourt,

namely in connection with )rticle 25747 -his has %ermitted the $ourt to ta/e into

account the socialDcultural and %oliticalDdemocratic facets of the media and to

introduce these into its decisions7 9or instance, it stressed in the Budgment concerning

the )ustrian broadcasting mono%oly5 that the %reser"ation of a %lural, culturally

di"erse broadcasting offer was undoubtedly an aim that could Bustify restrictions to

broadcastersH freedoms7 9urthermore, such %luralism can be achie"ed by other means

than a %ublic ser"ice broadcasting mono%oly, for e:am%le, through a dual broadcastingsystem7

2 See, abo"e all, the Euro%ean $ourt of *uman +ightsH Lentia Informations"erein Budgment of 4>72272 in Euro%#ische

Grundrechtseitshrift 1EuG+6 2>, %7 3> similarly, see the Budgment deli"ered by the $ourt on 4=7725 in EuG+ 25,

%7 433 for a commentary, see M7 Stoc/, E!Medienfreiheit Kommuni/ationsgrundrecht oder !nternehmerfreiheit

19reedom of the media in the E! a fundamental right to communicate or freedom of enter%rise6 in Kommuni/ation

+echt 4552, %%7 4= and 44 ff73 See the leading decision of the 9ederal $onstitutional $ourt 1&;erfGE6, No7 3


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Media diversity in Europe Page *

9. -he need to guarantee media %luralism in the conte:t of )rticle 25 of the $on"ention

has been underlined by the Euro%ean $ourt of *uman +ights in other Budgments7 9or

e:am%le, in the Jersild case, it em%hasised the im%ortance of the audio"isual media for

a democratic society6 7 In the Piermont Budgment of 47237 , the $ourt li/ewise

referred to the mediaOs im%ortant role in a democratic society and the related need for %luralism, tolerance and o%enness7 Lastly, in the &ladet -roms8, 9ressoz and +oire,9

(berschlic/ 10 and Janows/i11 cases, it stressed the s%ecial democratic role of the %ress

as a %ublic watchdog7

10. It can therefore be seen that the Euro%ean $ourt of *uman +ights has recently been

gi"ing increasing weight to the social, cultural, %olitical and democratic role of the

media, although this is done in the conte:t of the restrictions under )rticle 25747 It is

also worth noting that the Euro%ean !nion follows this case law7 -he Euro%ean $ourt

of Justice considers that, in the light of )rticle 2574 of the $on"ention, there is a

com%elling %ublic interest in the maintenance of a %luralistic radio and tele"ision

system, which Bustifies restrictions on fundamental freedoms127 )rticle 25 of the$on"ention accordingly not only enshrines an indi"idual right to media freedom, but

also entails a duty to guarantee %luralism of o%inion and cultural di"ersity of the media

in the interests of a functioning democracy and of freedom of information for all7

Pluralism is thus a basic general rule of Euro%ean media %olicy7

++. D+0%RS+#2 &F '5$#5R% AS A( ASP%'# &F P$5RA$+SM

11. In Euro%e, cultural di"ersity is an integral %art of Euro%ean cultural identity7 -he

ability of the media to reflect the cultural di"ersity de%ends on the %lurality of the

media7

12. 9reedom of information im%lies that citizens will ha"e the %ossibility to access a

"ariety of information, %rimarily different o%inions and ideas, but in a wider conte:t

also a "ariety of cultural as%ects and e:%ressions7 $ulture in a broad sense influences

society in subtle ways, building the basis on which we form our o%inions7 !niformity

in the media strengthens the tendency to conformity and wea/ens the ability to assess

other %ers%ecti"es and alternati"e o%inions7 Euro%e has the ad"antage of ha"ing many

cultures7 -he reflection of this cultural di"ersity in the media strengthens the sense of

Euro%ean identity and the citizenOs ability for democratic %artici%ation7

13. Cithin the framewor/ of the Corld -rade (rganisation, there is an attem%t to treatculture as an ordinary commercial good or ser"ice7 Should such efforts succeed, there

is a danger of narrowing cultural di"ersity down to one or a few dominant cultures

6 Judgment of 4772>, Series ) No7 4=, %7 4, Q 27 Judgment of 4723, Rearboo/ of the Euro%ean $on"ention on *uman +ights 23, 4338 Judgment of 457372, Neue Buristische Cochenschrift 1NJC6 4555, 25239 Judgment of 427272, NJC 2, 22310

Judgment of 27


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Page Council of Europe

which will ser"e global audiences through the global dominant media7 $om%etition

between cultures or cultural e:%ressions and "alues im%lies that someone will gain

mar/et shares and thus marginalise or e:tinguish other cultures or cultural

e:%ressions7 -his is, howe"er, contrary to the traditional Euro%ean "iew on cultural

di"ersity7 -he Euro%ean tradition, which has been strengthened o"er the last decade, is

to ac/nowledge the "alue of Euro%ean cultural di"ersity, and rather than lettingmaBority cultures @winA o"er minority cultures, the %olicy has been to %rotect and

%romote minority cultures7 -his %olicy is based on a belief that culture and cultural

e:%ressions transcend the notion of being a merchandise, and that cultural di"ersity

contributes %rofoundly to Euro%ean identity and democracy7

14. -he technological, economic and social facets of globalisation a%%ear at the same time

as challenges and as o%%ortunities to a newly highlighted cultural di"ersity7 -he

ongoing im%ortant efforts by the nongo"ernmental International Networ/ for $ultural

'i"ersity 1IN$'6 and the International Networ/ on $ultural Policy 1IN$P6 of the

Ministers of $ulture to %re%are an international con"ention for the %rotection of

cultural di"ersity %ro"ide an o%%ortunity to ele"ate cultural di"ersity as a %olicy aim both within national cultural and media %olicies and as a %rotected global "alue7 It

seems a%%ro%riate that the $ouncil of Euro%e member States closely follow the

de"elo%ments of this debate and its conseFuence on the %rotection of and su%%ort for

media %luralism7

+++. D+0%RS+#2 &F '&(#%(# A(D S&5R'%S AS A( ASP%'# &F P$5RA$+SM

15. 'i"ersity in the ownershi% of media outlets is not sufficient %er se to ensure %luralism

of media content7 -he way media content is %roduced also has an im%act on the

o"erall le"el of %lurality in the media7

16. +eaders who consult se"eral news%a%ers sometimes find they contain the same

articles, usually %receded by the initials of a %ress agency7 -ele"ision "iewers who

switch from one channel to another often see the same news re%orts, documentaries or

dramas7 -he reason for this uniformity is that the newsrooms of media com%anies do

not themsel"es %roduce all their articles or %rogrammes7 -hey use outside agencies

that su%%ly information, %hotos, newsreel, broadcasts, documentaries, series and films7

)s a conseFuence, the intense com%etition between news%a%ers or tele"ision channels

does not itself guarantee %luralistic content7 -his raises the Fuestion of whether, and if

so to what e:tent, inadeFuate com%etition among information sources can ha"e anegati"e effect on the functioning of democratic society7

17. Particular attention must be %aid to restrictions related to information which is

necessary to form %ublic o%inion7 ) mono%oly situation as regards such information

can be e:%loited to mani%ulate %ublic o%inion7 -his ha%%ens, for e:am%le, when

Bournalists co"ering a conflict are denied access to the %lace of o%erations and ha"e to

ma/e do with re%orts su%%lied by military %ress s%o/es%ersons, as was the case in the

Gulf Car7 -here is also the danger of uniform sources of economic information, with

consumers no longer able to fulfil their role in the mar/et economy7 !niformity

occurs when it is im%ossible to chec/ information using other sources7 -he Internet

encourages di"ersity of information sources, %articularly in discussion fora7 &ut it can


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Media diversity in Europe Page

do little to counter the uniformity of unchec/able information su%%lied by

go"ernments, organisations and businesses7

18. In"estigati"e Bournalism is e:%ensi"e but necessary if the media are to fulfil their

@%ublic watchdogA role7 In this res%ect, it is noted that %ublic tele"ision channels

generally do ha"e sufficient resources to %ro"ide welldocumented information, than/sto their licence fee income, whilst smaller media com%anies rarely ha"e the necessary

resources for this ty%e of Bournalism7 Press conferences can also be a useful source of

information they offer Bournalists an o%%ortunity to Fuestion their source %ro"ided

that Bournalists ha"e the resources 1timewise and other6 to "erifyDchec/ the

information recei"ed7

19. 'es%ite the Fuantity of information recei"ed by newsrooms, the %ublic has the

im%ression that it sees the same headlines almost e"erywhere7 -he media as a whole

focus on a limited number of e"ents that are gi"en %riority o"er all the others7 (ften

they are relati"ely tri"ial, and the attention they recei"e only lasts a short time, after

which it shifts to other news items7 -his is the conseFuence of the intense com%etition between media underta/ings to retain %ublic readersH and "iewersH . attention7

$om%etition is sometimes res%onsible for influencing the way information is

%resented, fa"oring attracti"e formats rather than the actual content7 -he selection of

information is not go"erned solely by mar/eting considerations, there is also a form of

@Bournalistic correctnessA, which is guided by the %erce%tion BournalistsO ha"e of

society7

20. Pluralism is not enhanced when newsrooms confine themsel"es to re%eating agency

re%orts or showing %ictures su%%lied by other channels, for e:am%le foreign ones in

the case of e"ents abroad7 In such cases, the BournalistsH role is reduced to selectingfrom a great mass of information coming from a limited number of sources7

+0. &1 #& R%G5$A#% #% M%D+A MAR6%# 7 B2 SP%'+A$ R%G5$A#+&( &R #R&5G'&MP%#+#+&( R%G5$A#+&(

21. $om%etition legislation a%%lies to the media sector, as well as to all other economic

sectors in most countries7 -he %ur%ose of com%etition legislation is to secure an

effecti"e use of societyOs resources by creating conditions for real com%etition7 -he

E! merger regulation, monitored and enforced by the Euro%ean $ommission, has a

similar %ur%ose7 Mergers and acFuisitions within the media sector are thereforee:amined by com%etition authorities, at the national and E! le"els 1for E! member

States67

22. Ne"ertheless, a number of countries ha"e introduced s%ecial regulations to secure

media %luralism7 -he main reason behind such s%ecial regulations is that com%etition

legislation is considered insufficient to secure media %luralism7 -he %ur%ose of media

s%ecific regulation is to secure freedom of e:%ression and information, and the main

concern of media regulation is to safeguard the human and democratic rights of

indi"iduals7 -he assessment of conditions for effecti"e com%etition is not within the

sco%e of media regulation, and li/ewise com%etition authorities will not ta/e freedom

of e:%ression and information into consideration7 Media %luralism is not a %rimarygoal of com%etition legislation7


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Page 10 Council of Europe

23. Cithin the Euro%ean !nion, the 'irectorate General for $om%etition is res%onsible for

com%etition regulation, and a number of acFuisitions and merger cases ha"e been dealt

with7 Some of these cases ha"e in"ol"ed media com%anies7 In many of the @mediaA

cases in which the 'irectorate General for $om%etition has inter"ened, the

inter"ention has had %ositi"e effects also in relation to freedom of e:%ression andmedia %luralism7 Generally s%ea/ing, howe"er, com%etition legislation will only deal

with a minority of rele"ant cases 1from a media %luralism %oint of "iew6, and the

decisions are often too restricted to meet the needs of the media and cultural concerns7

24. -his shortcoming has been ac/nowledged in the Euro%ean !nionOs regulation7

&asically, the 'irectorate General for $om%etition has e:clusi"e com%etence to deal

with acFuisitions and mergers that fall within E! regulation7 National authorities ha"e

no com%etence to deal with those cases7 -here e:ists, howe"er, an e:ce%tion for cases

concerning media %luralism137 E"en if a case is being dealt with by the 'irectorate

General for $om%etition, the case can also be dealt with by national authorities, and

member States may establish stricter rules than the E! regulation7 -he fact that thereis an e:ce%tion for media %luralism in addition to %ublic security and %rudential rules,

demonstrates the im%ortance attached to media %luralism7 Chen the $ouncil

+egulation was ado%ted, it was clear that the economic and com%etition as%ects that

the regulation was based u%on did not ma/e it suitable for the safeguarding of media

%luralism7

25. )t a conference in No"ember 4552, $om%etition $ommissioner Mario M(N-I

commented in relation to the regulation of the media industry that @com%etition rules

are necessary to ensure an effecti"e, functioning free mar/etA, but added8 @-here will

often also be a "aluable %olitical aim to ensure media %lurality and a di"ersity of o%inion both within and across media7 Such %lurality and di"ersity are fundamental to

the health of an o%en, democratic society . may not be assured by a sim%le free mar/et

a%%roach7A

26. Mr Monti %ointed out that the need for media %lurality is %artly ensured by the

com%etition rules themsel"es, and he ga"e some e:am%les, which ha"e been

mentioned %re"iously in this re%ort7 *e ne"ertheless stated the following8 @In other

cases, howe"er, there may be legitimate concerns about media concentration where the

mar/et %ower is less than would trigger com%etition concerns7 In such cases, the

com%etition rules would normally be insufficient to ensure media %lurality7 )nd in

such cases, member States are free to im%lement additional rules7 Chere they aresee/ing to ensure media %lurality, they can e"en %re"ent mergers that would otherwise

be a%%ro"ed under the com%etition rules7A Similar %oints of "iew were %ut forward

during a seminar held by the &elgian E! $hairmanshi% in autumn 45527

27. -he %ur%ose and general sco%e of a%%lication of national com%etition rules are in

accordance with the E! regulation7 -he main difference is the di"ision of com%etence

between national com%etition authorities and the Euro%ean $ommission7 Practices in

se"eral countries show that there are "ery few cases which are being dealt with by

both com%etition authorities and media regulatory bodies7

13 $ouncil +egulation 1E$6 No >50>D= of 42 'ecember 2= )rt7 42 16


12/32

Media diversity in Europe Page 11

28. $om%etition regulation does not gi"e a satisfactory %rotection against media

concentrations which are contrary to freedom of e:%ression and information, and to

the le"el of media %luralism which is desirable in a democratic society7 -here is

definitely a need for sectors%ecific media regulation7

PART B: MEDIA OWNERSHIP REGULATIONS: ENSURING

DIVERSITY IN THE PRIVATE SECTOR

+. +(#R&D5'#+&( #& M%D+A &1(%RS+P R5$%S

29. -here is great "ariety in the regulations of the different $ouncil of Euro%e member

States as regards concentration control in the media sector7 -his being said, in

countries where there are sectors%ecific regulations on media ownershi%, in additionto general com%etition law which a%%lies subsidiarily to the media sector, it a%%ears

that the legislation, irres%ecti"e of the criteria or monitoring threshold em%loyed, aims

at ensuring at least three o%erators in the mar/et .two %ri"ate and one %ublic ser"ice7

30. -herefore, although a single regulatory %attern does not emerge across Euro%e,

generally s%ea/ing it could be sustained that controlling more than 2D of the

tele"ision mar/et is deemed as a limit in many States7 -his would mean that a

minimum le"el of di"ersity and %lurality im%lies ha"ing at least three nationwide

broadcasters7 -he situation in some smaller countries can be different, since there are

limits on the economic affordability of %ri"ate broadcasting, where maybe only one

%ri"ate broadcaster can be su%%orted by ad"ertising re"enues7 In se"eral @smallerAcountries, the foreign channels recei"ed are a means of contributing to %luralism7

31. Gi"en the "ariety of ownershi% models throughout Euro%e, it would be unrealistic to

consider that a common Euro%ean regulatory a%%roach in this area would be feasible7

E! member States ha"e already in"o/ed in the %ast that securing media %luralism is a

national com%etence 1%rinci%le of subsidiarity6, which has resulted in no action being

ta/en so far on media ownershi% at the E! le"el7 In the same "ein, this re%ort does not

recommend a %articular regulatory model for all $ouncil of Euro%e member States7 It

is ne"ertheless recalled that the audience share a%%roach is a widely used model,

which %resents the ad"antage of reflecting the real influence of a broadcaster in a

gi"en mar/et and which, at the same time, is neutral on the number of licences which

the broadcaster can hold and allows its international de"elo%ment7 -his model may

ne"ertheless be difficult to im%lement in certain countries7

++. &1(%RS+P R5$%S +( S%0%( %5R&P%A( '&5(#R+%S3 6%2 F%A#5R%S F&R '&MP%#%(# A5#&R+#+%S #& SAF%G5ARD P$5RA$+SM

32. ) summarised and com%arati"e o"er"iew of media ownershi% regulations in se"en

Euro%ean countries 19rance, !nited Kingdom, Germany, Italy, S%ain, Norway and

$roatia6 is %resented below7 -he measurementsDcriteria used in these se"en countries

to determine dominance and unacce%table mar/et concentration are Fuite "aried8


13/32


audience share, eFuity limits, "oting rights, turno"er, etc7, and can be regarded as

re%resentati"e regulatory a%%roaches for the whole of Euro%e7

France -he basic limit in 9rance is that a legal %erson cannot hold, directly or

indirectly, more than > of the share capital or voting rights in anationwide terrestrial tele"ision ser"ice7 (wners of news%a%ers are

subBect to a circulation limit of 5 of the mar/et of the same ty%e of

dailies7 Audience share thresholds are also used as criteria to control

concentration in 9rance7 -he following audience thresholds a%%ly radio8

235 million inhabitants local regional terrestrial tele"ision -;8 0

million inhabitants cable -;8 = million inhabitants7 In addition, there are

numerical limits on the number of broadcasting licences which can be

held by the same %hysical or legal %erson, which ha"e to be ta/en into

consideration in combination with the audience share andDor ca%ital share

limits7 So far, o%erators ha"e been %ermitted to hold 2 licence at the

national le"el and 4 for satellite tele"ision ser"ices, but a degree of fle:ibility has been introduced for 'igital -errestrial -ele"ision 1'--;6,

where the same legal %erson can hold u% to 3 licences, and the >

ca%ital share limit does not a%%ly7 -here are no numerical limits for radio

and cable licences, but audience thresholds ne"ertheless a%%ly to the

latter7 -he crossownershi% regime is based on the “two out of four” rule8

o%erators are not %ermitted to hold interests in more than two of the

following four sectors8 terrestrial -;, cable -;, radio or %ress, and if an

o%erator is acti"e in two of these sectors, it must res%ect certain

thresholds7 -urno"er is not used as a criterion to control media

concentrations in 9rance7

5nited 6ingdom News%a%er concentrations are subBect to s%ecific %ro"isions under com%etition regulations7 -he threshold "alue in the %ress sector is an

average circulation of o"er 355,555 co%ies7 Chere a news%a%er

%ro%rietor has reached this threshold and intends to further e:%and, the

%ro%osed mergerDacFuisition will be authorisedDreBected after testing

whether or not it is in the %ublic interest7 -he %ublic interest test includes

the desirability of %romoting %lurality of ownershi%, di"ersity in the

sources of information a"ailable to the %ublic and in the o%inions

e:%ressed in the media7 -he basic threshold for the broadcasting sector is

23 of the total market share, measured in terms of audience time 1andincluding the %ublic ser"ice broadcasting audiences67 Chere an o%erator

has reached this threshold, a number of numerical and eFuity limits

concerning additional licences come into %lay, to %re"ent an

accumulation of interests in the tele"ision sector7 -he same 23

threshold is used for the radio sector, in conBunction with a %oints system

that attributes a weighting to the size of the audience in the co"erage area

of the licensee7 -he cross-ownership regime %re"ents a news%a%er owner

with a mar/et share of 45 from holding national terrestrial licences

1$hannel or 3 licences6 but there is no restriction for such a news%a%er

owner in holding licences for local deli"ery ser"ices, satellite tele"ision

ser"ices or digital multi%le: ser"ices7 Chere the news%a%er owner has amar/et share of less than 45, any intended crossholdings with regional


14/32


or national $hannel or 3 licences will be e:amined against a %ublic

interest test7 -he draft $ommunications &ill contains %ro%osals to

radically reform the e:isting media ownershi% rules and reduce them to

the minimum necessary7 -he main changes in the &ill are8 1i6 the remo"al

of the e:isting restrictions on the nonEuro%ean ownershi% of

broadcasting licences, 1ii6 the remo"al of the 23 total -; audiencelimit, 1iii6 a rela:ation of the rules on radio ownershi%, and 1i"6 a less

onerous news%a%er merger regime7

German* $oncentration cases in the %ress, radio and tele"ision sectors fall under the sco%e of general com%etition law 1subsidiary a%%lication to the

tele"ision sector67 -he nationwide tele"ision sector is also subBect to

sectors%ecific legislation to safeguard %lurality in the media7 -here are

no numerical limits on the numbers of channels which o%erators are

%ermitted to e:%loit, but it is %rohibited for an o%erator to reach a

dominant o%inionforming %osition with its %rogrammes7 -he e:istence

of such a dominant o%inion %osition is assumed when an o%erator has a

general tele"ision audience share 1annual a"erage ta/ing into account allthe channels of a gi"en o%erator6 of more than 5 with the %rogrammes

that can be attributed to it7 *owe"er, this 5 threshold is as a rule only

an assum%tion which can be dis%ro"ed in each s%ecific case7 )lso, a

dominant o%inion %osition can be a%%ro"ed e"en abo"e a "iewer share of

5 7 -he &roadcasting State -reaty of the L#nder in its "ersion of 2 July

4554 will allow more e:tensi"ely to ta/e other factors into consideration

when e:amining whether there is a dominant o%inionforming %osition,

such as the %osition of the o%erator on similar mar/ets that are rele"ant

for the media7 9urthermore, as a means to secure %lurality of o%inion,

there is a regulation according to which %rogrammes with a tele"ision

audience share of abo"e 25 or o%erators with an o"erall "iewer share

of more than 45 are obliged to broadcast %rogrammes of inde%endent

third o%erators, socalled @window %rogrammesA, to a certain e:tent7

-here are no s%ecific crossownershi% regulations, but there are some

limitations at the L#nder le"el which %re"ent owners of maBor local or

regional news%a%ers from o%erating local or regional broadcasting

stations7 -urno"er is not used as a criterion to determine whether a

broadcaster has a dominant o%inionforming %osition or not7

S8ain )s regards nationwide analogue terrestrial broadcasters, as well as digital

terrestrial tele"ision 1'--6, the ownershi% limit that a legal or natural %erson could not hold, directly or indirectly, more than > of the share

capital in a licenceholding com%any has been abolished7 )s regards

local tele"ision, it is forbidden to hold more than two licences for the

e:%loitation of such ser"ices, or to carry out networ/ing, unless an

authorisation from the State or )utonmous $ommunity has been

obtained on grounds of the territorial, social or cultural characteristics of

the munici%alities7 -he main limit in the cable sector is that no legal or

%hysical %erson can hold shares, directly or indirectly, in two or more

com%anies which ha"e obtained a licence if they Bointly ha"e more than

2,3 million subscribers in the country7 No ownershi% limits e:ist for

analogue satellite broadcasters7 -here are no cross-ownership restrictionsin S%ain7 Pro"ided that com%anies res%ect general com%etition law and


15/32


the s%ecific ownershi% limits mentioned abo"e, they may simultaneously

own or control an unlimited number of national and regional news%a%ers,

radio networ/s, satellite or regional '--; ser"ices7

+ta"* In addition to general com%etition law which also a%%lies to the mediasector, the national %ress mar/et is subBect to limits based on circulation

figures8 an owner cannot hold more than 45 of the o"erall circulation of dailies in this mar/et, whilst concentration control in the regional %ress

mar/et is based u%on the number of different news%a%ers owned by a

single %ro%rietor8 the latter cannot control more than 35 of the total

number of dailies in the region7 )s regards free nationwide terrestrial

tele"ision, there is a numerical limit on the number of licences which can

be held by a single %erson8 45 of the networ/ ca%acity, that is, currently

a ma:imum of two channels, since there there are 22 freFuencies for

channels 1this limit is therefore "ariable and de%ends on the number of

a"ailable freFuencies67 )s regards nationwide %ay terrestrial tele"ision,

only one licence can be held7 In addition to this numerical limit, a limit

based on turnover also a%%lies to %ay and free -; terrestrial broadcasters8 they may not accumulate more than 5 of the resources

of the tele"ision sector7 $able and satellite broadcasters are also subBect

to a 5 turno"er limit of the resources in their res%ecti"e mar/ets7 -he

cross-ownership regime is also based on ma:imum financial resources

which an o%erator can accumulate8 owners with interests in the radio or

broadcasting and news%a%er or magazine sectors cannot hold more than

45 of the total resources obtained from ad"ertising, telesho%%ing,

s%onsorshi%, -; subscri%tion re"enue, financing of %ublic ser"ice

broadcasting, and re"enues from news%a%er electronic %ublishing sales

and subscri%tions7 ) draft law foresees the elimination of %re"ious cross

ownershi% limits between %ress and tele"ision7 -he current limit based on

re"enuesDresources will be reduced for all o%erators from 5 to 45

but will be calculated ta/ing into account the total re"enues from all

media mar/ets7

(or9a* Media concentrations are regulated in the Media (wnershi% )ct of 2


16/32

Media diversity in Europe Page 1+

'roatia S%ecific media related anticoncentration regulation e:ists only for the broadcasting media, other media and crossmedia ownershi% falling

under the sco%e of the general Law on the %rotection of mar/et

com%etition 12=6, where mar/et share is defined andDor limited in

terms of turno"er7 -he Law on -elecommunications 126 limits to onethird the share in the ca%ital in terrestrial radio and tele"ision, and allows

%artici%ation in only one radio or tele"ision organisation with a national

licence7 )t the local le"el, this rule is rela:ed and allows ca%ital share in

both radio and tele"ision, but only in nonadBoining areas7 In "ery small

areas 1less than 3555 or 25555 %eo%le6, it is %ossible to own 255 or

35 of the media, res%ecti"ely7 9oreign ca%ital is allowed only u% to

onethird of ownershi% in any broadcasting media, with no restrictions in

the %ress7 In 4554, the go"ernment initiated a debate around its thesis for

a Media law, en"isaging a crossmedia ownershi% anti concentration

%ro"ision7

+++. R %'%(# #R%(DS +( M%D+A &1(%RS+P PR&0+S+&(S3 F5#5R% R%G5$A#&R2 PR&P&SA$S F&R A(#+/'&('%(#RA#+&( M%AS5R%S

33. Generally s%ea/ing, con"ergenceDdigitalisation has led to a growth of deli"ery means

of di"erse content7 )t the same time, a trend towards the liberalisation of media

ownershi% restrictions can be noted7 Less stringent numerical limits on the number of

licences which a single o%erator can hold or more fle:ible crossownershi% rules, are,

for e:am%le, being considered in a number of countries7

34. -he s%ecificities of digital deli"ery %latforms do not always ma/e it feasible or

rele"ant to a%%ly traditional ownershi% limits to all of the new deli"ery %latforms7 -his

is %articularly true for digital terrestrial tele"ision 1'--6, and s%ecial regulations on

the ownershi% of '-- multi%le:es ha"e therefore been introduced in some countries7

35. -his being said, generally s%ea/ing, e:isting regulations on media ownershi% are also

a%%lied to digital broadcasting ser"ices in most Euro%ean countries 1for e:am%le, the

audience share thresholds in Germany a%%ly to both analogue and digital tele"ision

ser"ices67 ) new com%lementary limit for digital deli"ery %latforms has been ado%ted

in Italy 1and is being considered in other countries6 based on reser"ing >5 of thetransmission ca%acity to inde%endent %rogrammers7

36. Some countries ha"e recently been considering the introduction of media ownershi%

regulatory models based on a general clause of in"estigation, which would allow

regulatory authorities to inter"ene whene"er they found that a media concentration


17/32


case might be detrimental to freedom of e:%ression and the goal of ensuring di"ersity

of o%inions and ser"ices 1for e:am%le, Sweden1467

37. -hese systems easily ada%t to new circumstances as o%%osed to sectors%ecific

%ro"isions, which in"ol"e long decisionma/ing %rocesses, and which need to be

amended to co"er new situations adeFuately7 *owe"er, these systems ha"e their drawbac/s8 i6 decisions are ta/en on a casebycase basis, thus creating considerable

legal uncertainty among the affected %arties, and ii6 in some countries, im%osing limits

so loosely and "aguely defined u%on fundamental rights could be deemed

unconstitutional7

38. 9le:ible systems for the safeguarding of media %luralism based on a @harm test to

freedom of e:%ressionA should be established on the basis of clearD%recise legal

%ro"isions, and indicate at least which criteria should be ta/en into account by the

authorities when ado%ting their decisions7 -hese decisions should be duly reasoned,

o%en to re"iew by com%etent Burisdictions under national law and made a"ailable to

the %ublic7

39. Some mar/et %layers claim that the arri"al of new technologies undermines the

rationale for stringent restrictions on media ownershi%, based on the assum%tion, inter

alia, that new technologies %er se bring about a significant increase in the number of

choice and di"ersity in the media and that com%anies should not be ham%ered from

com%eting in a global economic system by regulatory restrictions on ownershi%7

*owe"er, based on de"elo%ments since 4552, it seems a%%ro%riate that Euro%ean

go"ernments maintain media ownershi% controls7

40.

It would a%%ear that the control of concentrations in the digital en"ironment willincreasingly be based on a set of fle:ible ownershi% limits in combination with

regulations on access to digital %latforms and cable networ/s 1the safeguarding of

%luralism in the new en"ironment will to a greater e:tent rely on access controls to

%re"ent @bottlenec/sA and to a lesser e:tent on ownershi% %er se67 +ules to ensure fair

access by third %arties to conditional access systems of digital %latforms and technical

intero%erability between decoding eFui%ment will remain im%ortant regulatory

obBecti"es7

+0. F&R%+G( &1(%RS+P &F M%D+A +( '&5(#R+%S &F '%(#RA$ A(D %AS#%R( %5R&P%

41. ) ra%id growth in the number of media outlets and the commercialisation of the media

sector in Euro%e o"er the %ast ten years has %roduced some distincti"e ownershi%

%atterns that may cause some concern in relation to media di"ersity7

2> ) Media $oncentration $ommittee in this country made a %ro%osal to the Go"ernment, suggesting that mergers and

acFuisitions of media com%anies should be subBect to both com%etition legislation and to a s%ecific Media

$oncentrations )ct7 Such an )ct would %ro"ide for a general clause of in"estigation and the %ossible %rohibition of

mergers and acFuisitions that could im%ede a free e:change of o%inions and com%rehensi"e information, that is, whenthere is a fear that the %ro%osed concentration could endanger freedom of e:%ression 1harm test to determine whether the

merger in Fuestion o%erates against freedom of e:%ression67 -he en"isaged legislation would be general and thus co"er both analogue and digital broadcasting ser"ices7


18/32

Media diversity in Europe Page 1*

42. 'ifferent foreign com%anies now %redominantly own the %rinted %ress in some of

these countries7 )t the national le"el, some of the %ress mar/ets are highly

concentrated7

43. In the broadcasting sector, commercial tele"ision, and to a lesser e:tent radio, is in

many countries owned by the same com%any, Scandina"ian &roadcasting System1S&S6, and %ublic ser"ice broadcasters are e:%ected to contribute to di"ersity, but the

fact remains that they do not always do so7

44. )s the re%ercussions of %redominant foreign ownershi% in the media sector in the

central and eastern Euro%ean countries are not clear, attention and analysis should be

directed to this in the future7

PART C: PUBLIC SERVICE BROADCASTING:AN ESSENTIAL ELEMENT FOR MEDIA

DIVERSITY

45. -he %ri"ate sector alone, that is, the mar/et, cannot guarantee %er se a %luralistic

media landsca%e7 In a conte:t of increasing concentration in the media, accelerated by

digital de"elo%ments, the role of %ublic ser"ice broadcasters becomes crucial, as a

counterbalancing factor and to ensure social and democratic cohesion7 -herefore,

o"er and abo"e legislati"e measures on media ownershi% in the %ri"ate tele"ision

sector, it is eFually im%ortant to strengthen and su%%ort the role of %ublic ser"ice

broadcasting7

46. -he ongoing concentration trend in the commercial media reFuires a balancing weight

on the other side8 %ublic ser"ice broadcasters7 -his means that the e:istence of a few

dominant com%anies can only be tolerated if %ublic ser"ice broadcasters ha"e a strong

and inde%endent %osition7

47. ) %ublic broadcasting system detached from State influence is absolutely essential to

%ro"ide di"erse information, culture and content to all citizens7 (nly in such a way can

the %lurality of cultures in Euro%e sur"i"e7 -his has been re%eatedly ac/nowledged bythe $ouncil of Euro%e and the Euro%ean !nion, and is reflected in the Protocol to the

E$ -reaties on Public Ser"ice &roadcasting, as well as in maBor decisions of the E$

institutions, for e:am%le the $ommunication of the Euro%ean $ommission clarifying

the a%%lication of State aid rules to %ublic ser"ice broadcasting 1(ctober 455267

48. Publicly funded, noncommercial broadcasting organisations need to be internally

%luralistic in order to ensure their o%timal role for media di"ersity7 Public ser"ice

charters, editorial agreements and bodies re%resenting the %ublic interest are beneficial

to foster internal %luralism7 -he media out%ut of these broadcasters can ma/e a

significant contribution to %olitical and cultural %luralism, as well as ser"e as a "ehicle

for the e:%ression of minority cultures7 -he fulfilment of the %ublic ser"ice mandatealso reFuires %rofessional management and go"erning bodies7


19/32


49. -he contribution of %ublic ser"ice broadcasting to general interest obBecti"es is

ac/nowledged by most member States which, for e:am%le, im%ose mustcarry

obligations of %ublic ser"ice channels on cable o%erators7 In countries where digital

terrestrial -; is being introduced, transmission ca%acity should also be reser"ed for

%ublic ser"ice broadcasters on the networ/s, as some countries ha"e already done7

50. -he e:tension of mustcarry rules to all deli"ery %latforms would ob"iously ha"e a

%ositi"e im%act on %luralism, although the /ey factor should remain that %ublic ser"ice

%rogrammes can be easily recei"ed by all users8 if this is ensured, for e:am%le, by

means of terrestrial deli"ery, then e:tension of mustcarry rules to all %latforms might

not be so necessary7

51. E:tending mustcarry rules to certain %rogrammes ser"ices of a %ri"ate nature would

also seem Bustified if the latter were of general interest, if they fulfilled a %ublic

ser"ice mission and met clearly defined general interest obBecti"es 1cf7 )rticle 2 of

the 'irecti"e of the Euro%ean Parliament and $ouncil on !ni"ersal Ser"ice and !sersO+ights related to Electronic $ommunications Networ/s and Ser"ices67

52. In conclusion, %ublic ser"ice broadcasters should be strongly su%%orted in the conte:t

of digitalisation and mar/et concentration8 they should ha"e legal, technical and

financial security to ada%t to the com%etiti"e %ressure from %ri"ate broadcasters7 In

this res%ect, they should be able to coo%erate with other o%erators in the media field,

with a "iew to de"elo%ing new media ser"ices and content, thereby contributing to

media di"ersity7 -his might also reFuire the reorganisation of %ublic ser"ice

broadcasters for the realisation of their o"erall mandate7

PART D: NEW TECHNOLOGIES AND DIVERSITY ISSUES

+. 'A$$%(G%S A(D &PP&R#5(+#+%S &F '&(0%RG%(# M%D+A

53. 'e"elo%ment in technology %oses new challenges to %luralism, and unless a coherent

media %olicy based on citizensO right to information, as %ro"ided for in )rticle 25 of

the Euro%ean $on"ention on *uman +ights, is in %lace, the de"elo%ment of a

com%etiti"e and %luralistic media mar/et could be com%romised7

54. 9rom a technical stand%oint, the de"elo%ment of "ertical integration, fa"oured by %ay

tele"ision o%erators, ma/es it %ossible to erect barriers against intero%erability by the

use of )%%lication Programme Interfaces 1)PI6 and Electronic Programme Guides

1EPG6 which are not o%en and standardised throughout Euro%e7 If, on the contrary,

digital -; standards were harmonised and intero%erable, manufacturers would be able

to sim%lify their range of %roducts, %rices for consumers would tend to decrease and

access to a wide range of ser"ices would be facilitated7

55. -echnological con"ergence of broadcasting, com%uting and telecommunications, the

increase in the number of channels and liberalisation seemed initially to offer greato%%ortunities8 firstly, by channelling the same content "ia different means and


20/32


technologies, and secondly, by ensuring the simultaneous %resence of different

contents on a single transmission means andDor technology7

56. -oday, it is already technically %ossible for Internet users to recei"e certain tele"ision

%rogrammes at the time of their own choosing, either in their original "ersions or

using the o%%ortunities o%ened u% by interacti"ity and multimedia, with a series of additional information ser"ices a"ailable on demand through databases7 *owe"er,

technical difficulties %ersist related to "ideo streaming on the Internet and "iewing

habits ha"e still not e"ol"ed radically so as to ma/e the "iewing on the com%uter of

certain ty%es of content, such as films, "ery successful7

57. Moreo"er, than/s to interacti"ity, traditional terrestrial broadcasting can include

content so far considered to be ty%ical of the telecommunications sector 1such as

"iewersH inter"ention during broadcasts for Fuestions or comments6 or as electronic

sho%%ing 1such as reFuesting or ordering a boo/ that is being discussed in a

%rogramme67

58. In res%onse to this ra%id de"elo%ment of technologies and what they ha"e to offer,

indi"idual countries ha"e o%ted for a @laissezfaireA %olicy7 (n the assum%tion that

the mar/et guarantees the use of all the %ossibilities o%ened u% by con"ergence, the

res%onsibility for ensuring consumer well being, o%timum resource allocation and the

effecti"eness of com%anies are left to mar/et forces7 -hese countries rely on

com%etition rules to ensure that the system %rotects consumer interests7

59. Tuite a%art from the %roblems of how mar/ets are defined, com%etition rules are by

their nature designed to %romote the de"elo%ment of the mar/et1s67 9or e:am%le, to

foster technological de"elo%ment, the E$ %ractice has been to encourage acFuisitionsand mergers, which may assist technological de"elo%ment but has led to the

emergence of global oligo%olies that run counter to the %rinci%les of %luralism in the

media field7

60. In the absence of corrections, the final outcome of liberalisation will be the transfer of

resources from State mono%olies to %ri"ate oligo%olies with too few safeguards for

consumers 1see the case of the sale of 'eutsche -ele/omHs regional cable -;

networ/s, KNC and K&C, a%%ended67

61. -he telecommunications sector %ro"ides sufficient e"idence that the su%%osed balance

guaranteed by the mar/et is neither fair nor stable, and that the mar/et has noto%timised resources andDor guaranteed consumersDusers satisfaction 1see a%%endi:67

62. )s in the case of telecommunications, the growing number of channels does not, of

itself, result in di"ersity of media or content7 Ret, with the ad"ent of digital broadcasting, media di"ersity remains a /ey %olicy obBecti"e that must be res%ected in

the interests of democracy and societiesH full cultural de"elo%ment7

63. E:%erience gained in the telecommunications sector offers a number of lessons on

how to deal with the media sector7

64. )s was shown in the re%ort on media %luralism in the digital en"ironment, ado%ted by

the Steering $ommittee on the Mass Media in (ctober 4555, multimedia grou%s


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1)(LD-ime Carner or ;i"endi6, the maBority of which o%erate internationally,

increasingly control the entire chain of audio"isual %roducts and ser"ices, including

the management of rights, %roduction, broadcasting and distribution7

65. Se"eral %ri"ate com%anies ha"e ado%ted strategic alliances and mergers within the

audio"isual sector or with %artners from neighbouring mar/et sectors or mar/ets, suchas com%uting and telecommunications7 Many of these alliances are intended to create

a synergy between the su%%liers of audio"isual content and the distributors of

audio"isual ser"ices7

66. Pluralism, that is, granting consumersDusers access to media ser"ices of their own

choice, under fair conditions, is only meaningful if there is a corres%onding guarantee

of di"ersity of su%%ly, and thus of the a"ailability of a whole range of content and the

%ossibility of using any medium7 -his has not so far been the case, on account of the

liberalisation of the mar/ets and the argument that it is sufficient to a%%ly com%etition

rules7

67. )s a conseFuence of media concentrations, a small grou% of com%anies control suchtraditional content as s%ort and films7 It is their interest in offering this content on %ay

tele"ision that discriminates against the less well off, and %re"ents access by certain

consumers to %articular ty%es of content7

68. -o sum u%, although a different regulatory a%%roach is needed for content and

networ/s, the new regulatory en"ironment must ta/e into account the lin/s between

the two, %articularly regarding media %luralism, cultural di"ersity and consumer

%rotection7

++. D+G+#A$ #%RR%S#R+A$ #%$%0+S+&( :D##;

69. 'igital -errestrial -ele"ision 1'--6 is the third system for the distribution of digital

tele"ision channels, and li/e the other two %latforms cable and satellite it offers

added channel ca%acity, enhanced tele"ision ser"ices and interacti"ity7 )ll three

%latforms are in a certain way com%lementary to each other7

70. Many Euro%ean go"ernments are committed to the introduction of '--, in large %art

due to its democratic %otential and o%%ortunities for more di"ersity7 )lthough

countries are at different stages with the de%loyment of this new technology, most aremo"ing in this direction7 (ne of the /ey elements which go"ernments recognise is

needed for the de%loyment of '-- is an effecti"e and wellmanaged digital switch

o"er %olicy7

71. -he s%ecial features of '--, which ma/e it an attracti"e transmission means, are that8

'-- is in many countries the best means to bring digital -; to all homes at an

affordable %rice for consumers, and can hel% in a"oiding that %art of the audience is

e:cluded from access to digital -;

'-- can facilitate the distribution of regional and local -;


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national authorities can regulate and im%ose %ublic ser"ice obligations as well as

obligations to distribute localDregional content to '-- o%erators, thus contributing to

di"ersity of information

'-- reduces the distribution costs for freetoair %ublic ser"ice tele"ision, which

today in many countries has the obligation of reaching most, if not all, of the %o%ulation7

72. 9rom a media di"ersity %oint of "iew, the establishment of '-- is im%ortant7 '--

will ma/e digital -; accessible to a larger %art of the %o%ulation, minimising the

number of %eo%le who cannot access tele"ision when switcho"er ta/es %lace7 '--

facilitates regional and local -; broadcasts, and %ublic ser"ice broadcasting will

generally ha"e an im%ortant %resence on this %latform as a result of @mustcarryA rules

ado%ted by go"ernments7

73. 'es%ite the abo"e, 'igital -errestrial -ele"ision has had a difficult start in se"eral

Euro%ean countries7 -he launching of '-- in S%ain, Sweden and the !nited Kingdomhas been far from successful7 In S%ain and the !K, the '-- o%erators ha"e gone out

of business and returned their licencesDfreFuencies to the regulator7 In Sweden, '--

has only attracted around 2557555 subscribers since )%ril 455515 7

74. '-- has been mar/ed by failures %rimarily because introduction of ser"ices was

carried out on a @%ay by userA basis, and the business models of the com%anies

in"ol"ed ha"e failed as a result of the low number of subscribers7 -he &ritish Minister

for Media Policy, -essa Jowell, has addressed the situation in the !K as @a failure of a

com%any, not of a technologyA7 )s mentioned abo"e, the !K Go"ernment, as well as

many other go"ernments, seems to stand firm in its decision to establish '-- as thethird digital -; %latform7

75. -he %resence of freetoair ser"ices on '-- seems necessary for the success of this

%latform7 -he funding base of freetoair broadcasters would also need to be

strengthened, and %ublic ser"ice broadcasters should ha"e a @forerunnerA role as

regards digital terrestrial de"elo%ments7 Such a combination with non%ay channels on

'-- networ/s will also enhance the %ossibilities for all indi"iduals to e:ercise

freedom of e:%ression and information7

76. -he success of '-- would also be facilitated by ha"ing common 1or o%en

intero%erable6 technical standards for digital eFui%ment in Euro%e7 -his has manyad"antages, mainly that it reduces to one the number of setto% bo:es for "iewers,

regardless of the %latform andDor ser"ice %ro"iders7

77. Subsidies or economic su%%ort to facilitate the launching of '-- could be foreseen,

although such measures may be difficult for the E!DEE) countries7 In Sweden, the

'-- licence holder 1the %ublic ser"ice broadcaster6 has %ro%osed to offer e"ery

licence fee %aying household a "oucher, to be used to acFuire a basic digital recei"er

bo: fitting the householdOs choice of technical %latform16 7

15 )s of May 455416

(lof *ultUn, Swedish -ele"ision $om%any, s%eech at the 23th EP+) meeting, &russels 20 May 4554


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78. (ther measures %ossibly to be considered in highly cabled areas or because of other

national circumstances might be facilitating regional switcho"ers7 In Germany for

e:am%le, the switcho"er to '-- will ta/e %lace by regions, one after the other7

79. -he %roblem with '-- is how to get through the initial %eriod7 -he main challenge for

go"ernments is to define what conditions would be a%%ro%riate for the switcho"er %eriod as well for a %ermanent system7 Chen go"ernments loo/ at how to handle

'-- in the initial %eriod, they should ta/e into consideration media %luralism and

a"oid ado%ting s%ecial e:em%tory measures for '-- which could reduce or Beo%ardise

freedom of e:%ression and information or media di"ersity7

PART E: TRADE LIBERALISATION AND AUDIOVISUAL

SERVICES

80. 'i"ersity and %luralism of the mediaDin the media is influenced by international trade

%olicy7 )n e:am%le of how trade %olicy can ha"e an im%act on cultural %roduction and

distribution has been highlighted recently in the conte:t of negotiations within the

Corld -rade (rganisation on trade in goods 1G)--6 and ser"ices 1G)-S67 -he

audio"isual and broadcasting sectors and their treatment ha"e become %art of the

globalisation contro"ersy, where different %ositions can be identified7

81. G)--8 -he General )greement on -ariffs and -rade a%%lies to radio and tele"ision

broadcasting only insofar as %ay-; broadcasting entails the sale or rental of

decoders7 )rticle I; of the G)-- sets out s%ecial %ro"isions on cinema films which

allow the $ontracting Parties to set screen Fuotas for films of foreign origin7*owe"er, )rticle ?I of the G)--, to which no )rticle I; e:ce%tions are %ossible,

%rohibits restrictions on the Fuantity of im%orts or e:%orts7 -he Euro%ean !nion has

set Fuotas for the broadcasting of Euro%ean films on tele"ision in order, in %articular,

to %rotect Euro%ean films which are considered a cultural %roduct from being

swam%ed by )merican ones7 -he %roblem in classifying films is to decide which

regulations go"ern Euro%ean co%roductions7 -he nationality of the %roduction

com%any and of the actors and the country in which the film was shot are all rele"ant

factors7 It is an o%en Fuestion whether )rticle I; G)-- can also be a%%lied to -;

%roductions7

82. G)-S8 +adio and tele"ision broadcasting is a ser"ice within the meaning of G)-S7-he agreement does not, howe"er, contain any s%ecial %ro"isions concerning the

broadcasting of films7 -he main obligations G)-S im%oses on its members are8 most

fa"ourednation treatment 1)rt7 II6, trans%arency 1)rticle III6, and . subBect to

liberalisation commitments underta/en mar/et access 1)rt7 ?;I6 and 1eFual6

national treatment 1)rt7 ?;II67

83. E:ce%tions with regard to mostfa"oured nation treatment are allowed only insofar as

they are set out in the )nne: on )rticle II e:em%tions7 -his anne: sti%ulates that

G)-S members must %lace the ser"ice sectors they wish to e:em%t from the most

fa"oured nation treatment clause on socalled e:em%tion lists in which the sco%e of

the ser"ice and the duration of the e:em%tion must be clearly stated7 -he E! and


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other G)-S members ha"e also %laced certain as%ects of radio and tele"ision

%roduction and broadcasting on such a list7

84. Mar/et access and eFual treatment of nationals are s%ecific obligations, which only

a%%ly if the members concerned ha"e agreed to them on se%arate lists7 -he E! and

other G)-S members ha"e only o%ened u% their telecommunications mar/ets toforeign ser"ice %ro"iders to a "ery limited e:tent7

85. In telecommunications G)-S also has a s%ecial anne:, designed to secure access to

the ser"ices mar/et for ser"ice%ro"iders who need the telecommunications

infrastructure to %ro"ide other ser"ices7 In this anne:, G)-S members underta/e to

grant ser"ice %ro"iders from other member States more or less unrestricted access to

%ublic telecommunications trans%ort networ/s and ser"ices insofar as they are

reFuired for the %ro"ision of the ser"ice in Fuestion7 *owe"er, %aragra%h 4b of the

telecommunications anne: states that the anne: does not a%%ly to @measures affecting

the cable or broadcast distribution of radio or tele"ision %rogrammingA7

86. -here are %erha%s three broad and distinct basic arguments in the globalisation debate

concerning the audio"isual sector and the broader field of cultural industries8 one

fa"ours com%lete liberalisation of trade in audio"isual goods and the inclusion of

audio"isual in the ser"ices negotiations, in which case the audio"isual sector would

not be treated as being any different than trade in any other /ind of commodity or

ser"ice7 -his %osition is generally not acce%ted among Euro%ean countries, which are

%redominantly 1es%ecially members of the Euro%ean !nion where this is the official

common %olicy6 in fa"our of the second argument, i7e7 that the audio"isual field holds

a s%ecial %osition because of its cultural "alue and should therefore be granted a

%ri"ilege and an e:em%tion from total liberalisation 1which if a%%lied to theaudio"isual sector would %reclude measures in su%%ort of audio"isual industries, i7e7

sub"entions67 -he second argument is lin/ed to the wish to a"oid @)mericanisationA or

@globalisationA of culture and the loss of Euro%ean nationalDregional cultural "alues7

87. -here is also a third %osition which goes beyond the %rotection of the audio"isual field

at the national le"el by using the @cultural e:em%tionA in trade agreements, and see/s

the creation of an international instrument for the %rotection of cultural di"ersity7 -his

argument is broader than Bust the audio"isual field and centres on the issue of cultural

di"ersity, which is defined to include all forms of artistic and cultural e:%ression

including %o%ular culture, traditional /nowledge and %ractices and linguistic di"ersity7

-he third %osition is at %resent con"erging around the idea of a draft $on"ention on$ultural 'i"ersity, such as the one being %re%ared by the International Networ/ on

$ultural Policy 1IN$P67 )t the 3th Ministerial meeting of the IN$P which too/ %lace in

$a%e -own in South )frica on 2>20 (ctober 4554, the %artici%ating ministers agreed

on a draft instrument on cultural di"ersity717 ) final draft might be %resented to the

ministers at the ne:t ministerial meeting of the IN$P, to be held in $roatia in (ctober

4557 ) con"ention might be a future tool to %rotect and su%%ort di"ersity in the media

field as well, and in this res%ect is a de"elo%ment that should be followed "ery closely

by Euro%ean countries7

17 Published on www.incp-ripc.org1under )nnual meetings, 455467

http://www.incp-ripc.org/http://www.incp-ripc.org/http://www.incp-ripc.org/


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88. -he %ositions and arguments ta/en by countries differ according to their indi"idual

%osition and circumstances7 In Euro%e, the countries facing a more difficult %osition in

the international trade negotiations are those which are not members of the Euro%ean

!nion and are neither @candidate countriesA7 )t the international le"el, the de"elo%ing

countries face the most difficult challenge of retaining their cultural di"ersity in "iew

of mar/et globalisation7

89. In order to guarantee, %rotect and su%%ort media di"ersity and %luralism, attention

should be %aid not only to the rele"ant national and regional %olicies and %ractices, but

more and more also to the international instruments and their im%lications7

PART F: CONCLUSIONS AND RECOMMENDATIONS

90. )rticle 25 of the Euro%ean $on"ention on *uman +ights and the Budgments of the

Euro%ean $ourt of *uman +ights are conclusi"e that States are under the duty to

%rotect, and if need be, to ta/e %ositi"e measures to safeguard and %romote media

%luralism7 -oday, this necessitates that go"ernments act concretely and decisi"ely to

counter increasing concentration in the media7

91. (ngoing concentration and con"ergence in the media field necessitates a strong and

inde%endent %ublic ser"ice broadcasting to guarantee the dissemination of di"erse

information and o%inions to the %ublic7

92. -he goal of any regulatory or control system on media concentrations should be to

counteract mar/et dynamics and o%erations, whether horizontal or "ertical, that are

detrimental to %olitical and cultural %luralism, and thus a"oid that a single or few

com%anies control all o%inionforming media and the media culture within a gi"en

country7

93. -a/ing into account the s%ecificities of each country, sectors%ecific rules should be

designed to safeguard and ensure %lurality and di"ersity in the media7 General

com%etition law can only ha"e a com%lementary role as regards concentration in themedia sector7

94. )mongst the indicators freFuently used to control mar/et concentration in the

media sector are8 turno"erDre"enues, shareholding, "oting rights, audience

shareDshare of "oice, etc7 -he audience share indicator is one of the most rele"ant

and useful since it reflects the real influence of an o%erator in a gi"en media mar/et,

is neutral on the number of licences which the broadcaster can hold and allows the

international de"elo%ment of the broadcaster7

95. -he u%todate collection and %ublic access to economic information on %ro"iders

and o%erators 1turno"er, audience share, etc6 are absolutely necessary7 (nly on the

basis of a%%ro%riate data is it %ossible to determine if media %luralism is "ibrant or

endangered7 Such data should be collected and used in monitoring and as the basisfor regulation and controls of media concentrations7


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27/32


APPENDIX

+. S#R5'#5RA$ %0&$5#+&( &F #% M%D+A S%'#&R

100. -he Euro%ean media sector is undergoing a ra%id and %rofound structural change7 It is

difficult to follow all transformations and e"aluate their conseFuences7 )s com%anies

enter into alliances and dissol"e them at great s%eed, mentioning concrete e:am%les in a

re%ort would ris/ being outdated at the time of its %ublication7 -heir mention would be

further com%licated by the fact that structural de"elo%ments "ary from one country to

another7 It is ne"ertheless %ossible to indicate certain trends8

101. )t a technological le"el8

the introduction of digital terrestrial tele"ision 1'--6,

the mono%oly %osition of cable networ/s, the continued increase in the %enetration of the Internet, es%ecially among young

audiencesDusers7

102. )t the le"el of com%anies8

the great number of mergers and collaboration agreements, with a tendency towards

internationalisation 1e7g7 the merger between ;i"endi and the $anadian com%any

Seagram, owner of !ni"ersal studios, has led to a transatlantic alliance6,

the difficult financial situation of se"eral grou%s in the media sector,

the significant losses in share "alues of media com%anies in the wa/e of the

bursting of the I- economy bubble7

103. 9rom a commercial %oint of "iew8

the de"elo%ment of %ay tele"ision, mainly in the form of grou%ed offers 1bouFuets6,

the e:%losion of the costs in transmission rights 1s%orts, films6,

the crisis in ad"ertising re"enues, which can become a factor of concentration7

104. )t the le"el of offerings8

a commercialisation of %rogrammes to reach audience le"els that will a%%eal toad"ertisers,

uniformity of the %rogramme schedules 1same ty%es of %rogrammes at the same

times6,

the standardisation of %rogramme formats as %art of international licensing7

++. (%1 #R%(DS #&1ARDS 'R&SS M%D+A &1(%RS+P3 #% %M%RG%('% &F #%M5$#+M%D+A M5$#+(A#+&(A$

2537 -he emergence of new communication technologies, %articularly illustrated by the

Internet and digital satellite tele"ision, has o%ened new mar/ets for the

telecommunications industry, broadcasters and other content %ro"iders7 -he %ri"atisationof former State telecommunication com%anies combined with a liberalisation of


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Media diversity in Europe Page 2*

tele"ision mar/ets has made room for new %layers7 Ne"ertheless, telecommunication

o%erators still %lay a maBor role in the new con"ergent mar/ets7

2507 -he /ey to success on the Internet and digital satellite tele"ision is ha"ing both

%ractical technical solutions and attracti"e content7 $ontent seems to be acting as a

dri"ing force for the sale of subscri%tions to cable networ/s and decoders7 -heestablishment of %ermanent coo%eration structures such as mergers or Boint "entures has

been essential to ensure that o%erators ha"e content %ermanently at their dis%osal7

25


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been a growth in the number of mergers and acFuisitions in the media mar/ets o"er

recent years7 (utside the E!DEE) area or between member and nonmember States,

mar/ets are, in %rinci%le, more clearly se%arated7

2247-he growth of media com%anies across national borders has %rimarily ta/en %lace within

s%ecific areas8 for e:am%le, !P$, the )merican cable com%any, has bought cablecom%anies in many Euro%ean countries Scandina"ian &roadcasting System 1S&S6, a

Lu:embourgbased )mericanfinanced com%any, has bought satellite -; com%anies in

"arious countries similar e:am%les can be found in the mobile tele%hone sector 19

Norwegian news%a%er com%anies ha"e in"ested in news%a%ers in Scandina"ia, the &altic

States and Poland merger negotiations between national telecommunication o%erators

are constantly ma/ing the headlines7 ) noteworthy de"elo%ment is the growth of free

news%a%ers8 the Swedish com%any Kinne"i/ has introduced the free news%a%er conce%t

@MetroA in many Euro%ean cities7

227-he de"elo%ment of digital tele"ision and interacti"e ser"ices has also led to a number of

Boint "entures7 E:am%les include KirchD&s/y& and MicrosoftD-elewest in the tele"isionsector and ;odafoneD;i"endiD$analV 1;izza"i6 in the area of interacti"e ser"ices7

22>7 Many of these mergers, agreements or Boint "entures ha"e elements of "ertical

integration7 )s already mentioned, the most well /nown merger in this res%ect is that of

)(LD-ime Carner7 ;i"endiD$analVDSeagram is another notorious e:am%le of "ertical

integration which was es%ecially %roblematic because of the creation of ;izza"i7 -he

merger was cleared after a number of modifications were made to the original agreement7

2237 -he conditions to authorise some of these mergers and Boint "entures illustrates the %an

Euro%ean dimension of this acti"ity8 for e:am%le the )(LD-ime Carner merger was

cleared after the agreed coo%eration with &ertelsmann had been cancelled and the

;i"endiD$analVDSeagram merger was cleared after the shares in &S/y& had been sold 1in

addition to other adBustments67

+0. #% %4AMP$% &F #%$%'&MM5(+'A#+&(S

2207)fter three years of com%lete liberalisation of telecommunications ser"ices, it is %ossible

to assess the le"el of com%etition in the "oice tele%hony mar/et by the fact that in the E!,

about =4 of the %o%ulation can choose between more than fi"e o%erators for intercity

and international calls 13 can choose between at least two o%erators6, while about 4can choose between more than fi"e o%erators for local calls 1>3 for at least two

o%erators67

2202 o%erators were offering fi:ed "ocal tele%hony ser"ices for

intercity calls, >0= for international calls and == for local ones, re%resenting increases of

=, 0


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227 )t first sight, the answer is no7 -he socalled readBustment of charges has resulted in an

a"erage increase of 24 in monthly rental charges o"er the %eriod 25, and ones to the !nited States by

>7

2457It is clear from figures on a"erage monthly e:%enditure on national calls 1local and long

distance6, on the basis of the charges le"ied by longestablished o%erators, that businesses

ha"e benefited more from liberalisation in terms of %rices, and that ordinary %ri"ate users

cannot e:%ect too much from the new mar/et entrants, who tend to target more %rofitable

mar/ets and thus to lower their %rices for these mar/et sectors7

2427 )t the same time, the Euro%ean !nionHs renouncement to ado%t anticoncentration

measures has hadDwill continue to ha"e negati"e effects, e"en on new entrants7

2447 ("erall, the number of concentration cases e:amined by the Euro%ean $ommissionunder its com%etition law has doubled o"er the last three years, although the number of

new cases related to agreements and dominant %ositions has declined %urely as a result of

a fall in the number of com%laints and the more laissezfaire %olicy ado%ted by the

$ommunity7

247 -his a%%roach is "ery ob"ious7 )mong the cases concerning telecommunications

infrastructure, reference may be made to the M$I CorldcomDS%rint merger and the

;izza"i Boint "enture7

24>7In the latter case, the $ommission authorised the creation of the ;izza"i %ortal in the

form of a Boint enter%rise in"ol"ing ;odafone, ;i"endi and $analV, after the com%anies

concerned had gi"en an underta/ing that ri"al Internet %ortals would ha"e eFual access to

the decoders and mobile tele%hone handsets of the %arent com%anies, which meant that

consumers who so wished could change %ortal7 )lthough the issue at sta/e was the

%otential creation of a dominant %osition in a mar/et considered to be on the boundary

between infrastructure and electronic commerce 1that of %ortals6, the nub of the %roblem

remains the control e:ercised by the %artner com%anies o"er the technical systems8

;odafoneHs mobile networ/s and the decoders of $analV7

2437-he )(LD-ime Carner and ;i"endiDSeagram cases concern the control of content and

the resulting ris/ of re%ercussions on mar/ets downstream7

24079inally, two other cases need to be considered7 In 4555, the $ommission authorised the

sale of two 'eutsche -ele/om regional cable tele"ision networ/s, KNC in North +hine

Cest%halia and K&C in &adenCWrttemberg, to $allahan In"est Limited7 -he

$ommission too/ the "iew that while immediately after the transaction, KNC and K&C

would ha"e a de facto mono%oly in their territories, the transaction itself did not create or

strengthen a dominant %osition on the mar/et for %aytele"ision in Germany, as KNC

and K&C were sim%ly ta/ing o"er the mono%oly %re"iously held by '-7


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24


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In terms of demand8

• *ow will customers react to the range of ser"ices on offer, as well as their Fuality and

%rice, not to mention the effect of fashion 1irrational beha"iour of mobile owners6

• Cill customers be more interested in certain ser"ices and neglect others

X X X

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